BARRY A. BRYANT, Magistrate Judge.
Before the Court is the Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1355) filed herein by
On September 14, 2011, Lewis was one of 66 defendants named in an indictment in this Court. ECF No. 1. He was charged in six (6) of the 190 counts of the indictment. Each of these counts alleged various drug distribution crimes. On November 3, 2011, Lewis appeared for an initial appearance and arraignment. ECF No. 338. He was appointed counsel and entered pleas of not guilty to all counts. On March 12, 2013, Lewis appeared before United States District Judge Susan O. Hickey and pled guilty to Count 3 of the indictment, namely, distribution of cocaine base within 1000 feet of an elementary school in violation of 18 U.S.C. §§ 841(a) and 860 and 18 U.S.C. § 2. ECF No. 1085. Pursuant to his Plea Agreement, Lewis agreed to waive certain appellate and post-convictions rights including the right to bring a challenge pursuant to 18 U.S.C. § 2255 except for claims based on ineffective assistance of counsel which challenge his guilty plea or the waiver. ECF No. 1085 ¶ 7. In his Plea Agreement, Lewis acknowledged he faced a mandatory minimum term of imprisonment for 1 year and a maximum term of 40 years. ECF No. 1085 ¶ 12. Additionally, Lewis acknowledged that discussions had taken place regarding his possible Guidelines range and agreed that any such discussions were merely attempts to guess at what appeared to be the correct guideline range and did not bind the Court. ECF No. 1085 ¶ 16. Judge Hickey tentatively approved the Plea Agreement and ordered a pre-sentence report ("PSR").
A PSR was prepared pursuant to the United States Sentencing Guidelines ("USSG"). ECF No. 1261. The PSR assessed a base offense level of 26. ECF No. 1261 ¶ 21. Lewis's base offense level was increased by one due to the offense involving a protected location and increased by four due to him being an organizer or leader which resulted in an adjusted offense level of 31. ECF No. 1261 ¶¶ 22, 25. However, because Lewis was determined to be a career offender, his offense level was set at 34. ECF No. 1261 ¶ 28. After receiving a 3-point reduction for acceptance of responsibility, Lewis's total offense level was 31. ECF No. 1261 ¶¶ 29-31.
The PSR also assessed Lewis's criminal history at 11 points, placing him in category V. ECF No. 1261 ¶ 50. Because he was determined to be a career offender, his criminal history category was increased to VI. Id. The resulting USSG advisory guideline range was 188-235 months imprisonment. ECF No. 1261 ¶ 72.
Lewis appeared for sentencing before Judge Hickey on October 29, 2013. ECF No. 1268. After giving final approval of the Plea Agreement, the Court granted Lewis's motion for departure.
On November 6, 2013, Lewis filed a pro se Notice of Appeal with the United States Court of Appeal for the Eighth Circuit. ECF No. 1279. On March 28, 2014, the United States filed its motion to dismiss the appeal based on the appellate waiver contained in the Plea Agreement. The Eighth Circuit granted the motion to dismiss on April 23, 2014. The Eighth Circuit's Mandate dismissing the appeal was filed on May 14, 2014. ECF No. 1330.
Lewis timely filed the instant Motion on November 20, 2014. ECF No. 1355. In his Motion, Lewis asserts his trial counsel, Mr. Clay Janske ("trial counsel"), was ineffective in several particulars:
The Government has responded to this Motion and asserts Lewis's trial counsel was not ineffective in any particular, urging the Court to deny the Motion. ECF No. 1475. Lewis replied to the Response. ECF No. 1524. I have considered all of the pleadings and matters of record in making this Report and Recommendation.
A § 2255 motion is fundamentally different from a direct appeal. The Court will not reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) ("Claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255."). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
Lewis raises seven different claims of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on an ineffective assistance of counsel claim, under Strickland, a movant must show: (1) his "trial counsel's performance was so deficient as to fall below an objective standard of reasonable competence," and (2) "the deficient performance prejudiced [his] defense." See Toledo v. United States, 581 F.3d 678, 680 (8th Cir. 2009) (quoting Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir.1995)). When considering the first element, there is a "strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance and sound trial strategy." Toledo, 581 F.3d at 680 (quoting Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir.1996) (citing Strickland v. Washington, 466 U.S. at 689)). "The burden of proving ineffective assistance of counsel rests with the defendant." United States v. White, 341 F.3d 673, 678 (8th Cir. 2003)(citing United States v. Cronic, 466 U.S. 648, 658 (1984)).
Under the first prong of the Strickland test, the Court must consider counsel's performance objectively and gauge whether it was reasonable "under prevailing professional norms" and "considering all the circumstances." Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (citations omitted). The Court should examine counsel's challenged conduct at the time of his representation of the defendant and avoid making judgments based on hindsight. See id. There is typically no basis for finding a denial of effective counsel unless a defendant can show specific errors that "undermined the reliability of the finding of guilt. . . ." White, 341 F.3d at 678. If, however, "counsel completely fails to subject the prosecution's case to meaningful adversarial testing, there has been a denial of Sixth Amendment rights making the adversary process presumptively unreliable [and no showing of prejudice is required]." See id.
If the Court finds deficient counsel and thus must consider the second prong, prejudice, a defendant must establish "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Prejudice can only be found if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir. 1992).
For the reasons set out below, I do not find Lewis has established ineffective assistance of counsel for any of the claimed deficiencies.
Lewis asserts trial counsel was ineffective when he
See Instant Motion, ECF No. 1355-1 p. 4. Lewis does not name any specific witness or the purported substance of what such a witness could testify about which trial counsel failed to interview or contact. He does not give any indication what evidence, if any, trial counsel failed to examine or gather on his behalf. The foregoing quoted allegation is the sum total of the factual allegations made regarding this claim. Lewis claims this is sufficient pursuant to Haines v. Kerner, 404 U.S. 519 (1972). Haines is a case where the Court considered a civil complaint filed pursuant to 28 U.S.C. § 1983 and is not directly applicable here. More appropriate to this § 2255 motion is Sanders v. United States, 236 F.3d 950 (8th Cir. 2001) where the Court stated, when faced with an almost identical claim of ineffective assistance for failure to investigate:
236 F.3d at 953. Here, Lewis's motion contains no supporting affidavit, other evidence or information to give more specificity to his vague claim of failure to investigate. In short, it "lack[s] sufficient specificity under even the most liberal pleading requirements." Id. Without such specificity, it is impossible to determine what prejudice, if any, might have resulted from the alleged failure to investigate. This Claim should be denied.
Lewis next claims trial counsel failed to adequately object to the Court's factual rulings at sentencing. Specifically, he claims:
See Instant Motion, ECF No. 1355-1 p. 5. As with the first claim, this claim contains no specific allegation and should be denied. See Sanders, 236 F.3d at 953. However, Lewis does several raise specific claims about trial counsel's conduct at or before sentencing, and these are addressed below.
Lewis's third claim asserts trial counsel was ineffective for failing to inform him of the possible impact of the career offender or armed career offender enhancements. Specifically, he claims:
See Instant Motion, ECF No. 1355-1 p. 6. The Plea Agreement itself (ECF No. 1085) belies Lewis's assertion he was unaware of the maximum sentence he faced. The "maximum term" of 40 years imprisonment is clearly spelled out in the Plea Agreement. ECF No. 1085 ¶ 12. Further, at the change of plea hearing on March 12, 2013, Judge Hickey specifically informed Lewis of the possible sentence which would be imposed:
Transcript, ECF No. 1288, p. 4. Lewis is entitled, pursuant to FED. R. CRIM. P. 11(c)(1), to be advised of the maximum sentence applicable to his conviction. He was clearly advised of this maximum sentence. Further, he clearly indicated he understood the maximum penalty and potential of an enhanced penalty. Judge Hickey also explained the operation of the USSG and the fact neither the Court nor trial counsel would be able to know the guideline application until after the PSR was prepared. In part, the Court explained:
Transcript, ECF No. 1288, p. 6-7.
In similar case cited by the Government, where the defendant claimed his counsel had not advised him of the possibility of career offender status being applied, the Eighth Circuit held:
Thomas v. United States, 27 F.3d 321, 325-26 (8th Cir. 1994). The Eighth Circuit denied this claim of ineffective assistance of counsel. Almost this exact scenario played out in Lewis's case. Judge Hickey gave him essentially the same admonition as was given the defendant in Thomas. Further, Lewis acknowledged at the change of plea hearing he had read and discussed the Plea Agreement with trial counsel. The Plea Agreement itself contained this language:
ECF No. 1085 ¶ 16.
Thereafter, Lewis was sentenced to a term of 180 months imprisonment or 15 years. This sentence was the result of a downward departure granted by the Court at the request of his trial counsel. Lewis's claim he was "totally unaware" of the potential sentence to be imposed in this case is wholly without merit.
Lewis makes no claim of actual innocence here. Assuming trial counsel did not advise Lewis of the application of the career offender statutes and assuming Lewis would have not entered a guilty plea had he been so advised, he would in all likelihood have been convicted based on the factual basis he agreed to at the change of plea hearing. See Transcript, ECF No. 1288 pp. 9-10, and Plea Agreement, ECF No. 1085 ¶ 2. There is no reason to believe he would not have been sentenced as a career offender. Had he gone to trial would not have received a deduction for acceptance of responsibility. It is likely he would not have been granted a downward departure. He may have been convicted of other counts in the Indictment as well. His sentence, in the scenario of a trial, would have almost certainly been substantially higher than the sentence actually imposed. The 180 months imprisonment actually imposed was well below the maximum sentence set out in the Plea Agreement and described by the Court at his change of plea hearing. Even if I were to assume trial counsel had not advised him of the possible application of the career offender statutes, and he had elected to go to trial, there is no reasonable probability his result would have been more favorable or different in any regard. In all likelihood it would have been less favorable.
Lewis's claim regarding trial counsel's alleged failure to inform him of the possible application of the career offender statutes should be denied.
Lewis next claims his trial counsel failed to object to certain findings in the PSR related to his career offender status. He disputes he qualifies as a career offender and claims trial counsel should have objected to this finding based on Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013). In Descamps, a defendant was determined to be subject to enhanced statutory penalties based on the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). This was based in part on a prior conviction for burglary pursuant to California Penal Code Ann. § 459 which provides "a person who enters" certain locations "with intent to commit grand or petit larceny or any felony is guilty of burglary." 133 S.Ct. at 2279. Defendant argued this was not a "generic" definition of burglary and thus not a crime countable when determining armed career criminal status. The Ninth Circuit affirmed the finding of armed career criminal, holding that its decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), permits the application of the "modified categorical approach" to a prior conviction under a statute that is "categorically broader than the generic offense." The Supreme Court reversed and held the "modified categorical approach" was inapplicable with regard to the ACCA and "divisible" crimes such as the California burglary statute which has alternative elements allowing conviction. Id. 133 S.Ct. at 2281-82.
I note Lewis was not sentenced pursuant to the ACCA, and for the reasons below, I find Lewis's argument regarding trial counsel's failure to make objections pursuant to Descamps unavailing.
Specifically, Lewis claims a prior conviction pursuant to Ark. Code. Ann § 5-74-104 (engaging in a continuing criminal gang, organization, or enterprise) should not have been used to qualify him as a career offender. He claims trial counsel should have known the Descamps decision made § 5-74-104 "inapplicable for use" in determining career offender status. Trial counsel in fact did file objections to the PSR's career offender finding, but did not reference Descamps. See Addendum to PSR, Objections Nos. 6 and 11, ECF No. 1261-1.
Lewis asserts Descamps prevents the Court from using his Arkansas conviction for engaging in a continuing criminal gang, organization, or enterprise in making the career offender decision under the USSG. He misapplies the rule of Descamps. The Descamps decision relates to the application of the ACCA sentencing enhancement. Lewis was not sentenced as an armed career criminal under that statute. Rather, he was found to be a career offender under Chapter Four of the USSG. Descamps does not apply and his claim in this regard should be denied.
Finally, Lewis asserts there was no "documented evidence that would support the enhancement to career offender status." ECF No. 1355-1 p. 7-8. This assertion is not accurate. The Government in fact introduced copies of the charging information and judgment of conviction for engaging in a criminal enterprise at sentencing. See Transcript, ECF No. 1290 pp. 30-31.
I also note Lewis's claim in this regard is not cognizable in a § 2255 proceeding. Sentencing Guideline claims such as this one should have been raised on direct appeal. See Auman v. United States, 67 F.3d 157, 160-61 (8th Cir. 1995). As noted above, collateral proceedings under § 2255 cannot be used as a substitute of appeal. See United States v. Ward, 55 F.3d 412, 413 (8th Cir.1995). While a prisoner can obtain relief pursuant to § 2255, he can only do so if the sentence imposed was in excess of the maximum authorized by law, i.e. violations of statutes establishing maximum sentences, rather than garden-variety Sentencing Guideline application issues. Lewis was sentenced well below the statutory maximum. Lewis's claim should be denied for this reason as well.
Next, Lewis claims trial counsel failed to move for a downward departure. This claim is flatly contradicted by the record of the sentencing hearing. Trial counsel moved for a downward departure and the Court granted the motion. See Transcript, ECF No. 1290, pp 34-35, 40-41. The Court departed downward and lowered Lewis's criminal history category from Category VI to Category V, despite him being a career offender. This resulted in the USSG range being lowered from 188-235 months to 168-210 months. See Transcript, ECF No. 1290, p. 41. This claim should be denied.
Here, Lewis actually argues there was no evidence to support a finding he was a manager or supervisor of the criminal organization and thus should not have had his USSG range increased. ECF No 1355-1, p. 10. He claims trial counsel should have filed a sentencing memorandum making this argument.
Trial courts in the Eighth Circuit have often held that failing to file a sentencing memorandum is not, in and of itself, ineffective assistance of counsel. See, Reid v. United States, 2010 WL 3829397, at *11 (E.D. MO. September 23, 2010); Gomez v. United States, 100 F.Supp.2d 1038 (S.D. 2000). There is no per se ineffectiveness for failing to file a sentencing memorandum.
Lewis makes no specific allegation regarding what such a sentencing memorandum could have contained, in addition to trial counsel's abjections and arguments at sentencing, which would have possibly changed the outcome of his sentencing. The PSR applied a four level increase to Lewis's total offense level for his role in the offense as a manager or supervisory. See PSR, ECF No. 1261 ¶ 25. Trial counsel objected and argued against the application of USSG § 3B1.1(a) in this regard. See Addendum to PSR, Objections Nos. 1 and 4, ECF No. 1261-1. The Court, after considering trial counsel's argument regarding Lewis's leadership role, reduced the PSR's four level enchantment to a two level enhancement. Trial counsel was specifically effective in this regard.
Finally, even had the Court found a four level increase based on role in the offense, Lewis's adjusted offense level would have been 31 under the USSG. See PSR, ECF No. 1261, ¶ 27. Because Lewis was determined to be a career offender, his adjusted offense level was 34 pursuant to USSG § 4B1.1. See PSR, ECF No. 1261 ¶ 28. Thus the adjustment of either two or four points based on his role in the offense was of no consequence.
Lewis's claim in this regard should be denied.
Lewis's final claim is trial counsel failed to argue he was sixteen years of age at the time of his conviction for one of the prior convictions used for enhancement purposes. ECF No. 1355-1 p. 12. He actually argues the Court erred in considering a prior conviction which occurred when he was sixteen years old. He cites the Juvenile Delinquency Act, 18 U.S.C. § 5031 et al., in support of his claim. The conviction at issue was one for robbery pursuant to Ark. Code Ann. § 5-12-102 and occurred in 1995 when Lewis was in fact 16 years old. His argument regarding trial counsel's failure to argue this conviction was improper is contradicted by the record in this case. Trial counsel filed a specific objection to the inclusion of this 1995 conviction in the PSR's criminal history calculation. See Addendum to PSR, Objections No. 6, ECF No. 1261-1. The fact the Court overruled trial counsel's objections does not make his representation ineffective. Lewis's claim here should be denied as trial counsel in fact did argue this point.
Lewis's claim 18 U.S.C. § 5031 et al. prevents use of this 1995 conviction is unavailing as well. The Federal Juvenile Delinquency Act (FJDA) provides the procedure for the adult prosecution of minors in the United States District Courts. Pursuant to § 5032:
18 U.S.C. § 5032. The FJDA governs the prosecution of minors in United States District Court. The use of state convictions of minors in sentencing adults in Federal court is not governed by the FJDA.
An offense committed prior to age 18 counts for criminal history purposes pursuant to the USSG as long as the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month. U.S.S.G. § 4A1.2(d)(1) (n.7). See United States v. McNeil, 90 F.3d 298, 299-300 (8th Cir. 1996). While Lewis was only 16 years old at the time of the 1995 conviction, he was charged as an adult, convicted as an adult, and sentenced to a twenty-year term of imprisonment. See PSR, ECF No. 1261 ¶ 35. The Court correctly counted the 1995 conviction as a predicate offense for determining career offender status The Government was not required to "ratify" Lewis as an adult, because he was indisputably an adult at the time he committed the crime for which he was convicted in this case. The Court properly considered the 1995 robbery conviction in determining Lewis's criminal history in this case. This Claim should be denied.
Accordingly, the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 should be denied.
Title 28, U.S.C. § 2255 provides in pertinent part:
28 U.S.C. § 2255. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states in part:
I have reviewed Lewis's claims and the record in this case. He is not entitled to relief in this court and no hearing is necessary. Further, Lewis has not made a substantial showing of violation of a constitutional right. Accordingly, no Certificate of Appealability should be granted. See 28 U.S.C. § 2253(c)(2).
Accordingly, based on the foregoing, it is recommended the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1355) be
